Dahlia Lithwick and Lisa McElroy on the Supreme Court’s silence leading up to the execution of Troy Davis:

ON Wednesday night, Troy Davis was executed for a crime he may or may not have committed. But the real crime on Wednesday night was the action — or really the lack of action, the absolute radio silence — of the United States Supreme Court, which, as the nation watched and waited, did nothing for 203 minutes past the scheduled execution time. Or at least nothing anyone could see.

It is a truism of the American justice system that the Supreme Court operates in secret, unmoved by candlelight vigils and protests, polls and placard-wielding crowds. That is right and proper. It’s the reason the justices are unelected and also the reason they are required to write fully developed opinions and orders.

But we must keep in mind that the court knew for several days that the execution was scheduled for Wednesday at 7 p.m. It knew that it would receive a last-minute petition for a stay and that Georgia would not carry out the execution until it spoke. Under those circumstances, for it to consider a matter of life and death, while for over three long hours America and the world are told absolutely nothing, is a violation of that basic bargain. It is a show of power without reason and of authority without accountability.

FantasySCOTUS should get in on this!

For 3 hours and 23 minutes the foremost lawyers and pundits in the country tried to guess at what was going on in Washington, while the Supreme Court’s Web site offered no information about the matter. If any other branch of government had exercised such power without explanation, it would have looked like all of democracy had been put on hold.

I think Dahlia is being a bit too melodramatic. The instant petition was filed under the All Writs Act, which basically gives the Court some vague, nebulous discretion. The Court has spent so much time in the past on this case, with a full written opinion. This was the last ditch effort that never works. What did Dahlia want? If the order was granted quickly, I imagine she would call the Court callous for not giving it due consideration. Too long (3 hours it seems) means the Court made Davis wait unnecessary long. What would the Goldilocks order have been like? After 90 minutes with pages of hand-wringing over the execution, and how they want to stop it, but can’t under the law? There were no dissents or anything! If any justice wanted to dissent, he or she could have held up the order. I just don’t know what she wanted.